No fix needed? Evidence of negative Hirst consequences piling up

You can see it as a sign of hope or a futile gesture. Key legislators beat the heat in a cool basement conference room in Olympia this week to restart talks on finding a fix to the unfortunate Hirst water decision.

At this point any sign of movement is a good thing. Since talks fell apart in July (resulting in no Hirst fix and no capital budget), finding a way to bridge the impasse has been a big topic of discussion, but not among legislators meeting face-to-face.

What we didn’t hear about coming out of the meeting was any big breakthrough. With both sides wanting something that’s important to them from the negotiations, you’d think a solution could be found. That expectation rouses the suspicions of some that important political allies of the House Democrats will only accept a “fix” on their terms.

Of course, some of their allies are quite public about the fact that they think no fix is needed. The state Supreme Court totally upending water law and putting a halt to almost all rural development is fine with them.

Some just can’t internalize the problem without a concrete example that hits you in the gut. Rural Whatcom resident Zach Nutting and his family provided that. Nutting, who was about to start building a new home for his family when the court ruled on Hirst, got on his knees in a Senate committee hearing and begged legislators to fix the problem.

Gov. Jay Inslee recognized the illustrative value in Nutting’s story. When talks were breaking down, Inslee trotted out Nutting’s example to tout a temporary two-year fix, which ended up looking like a cynical political move.

I was not a fan of the temporary fix idea. Recent events call into question how useful that fix would be, anyway. Hirst does have real-world consequences. A big one is the challenge of getting banks to sign off on loans for homes where the legality of the water supply is in question.

“Starting Aug. 1 until further notice Washington Federal will not be lending on properties in the state of Washington that have had wells drilled after Oct. 6, 2016. This is a result of the Hirst Decision and the uncertainty it has created with water rights.”

Lenders will naturally be wary of investing in a property when its value might plummet over a political dispute. That’s a real-world consequence, not a talking point. King County is now issuing a disclaimer on permits that the permit doesn’t mean the applicant can get water. A two-year delay is not going to help families like the Nuttings, and notices like King County’s are only going to make banks even less likely to loan.

Justice Debra Stephens wrote in her Hirst dissent, “The majority’s holding pushes a massive, and likely insurmountable, burden onto individuals applying for a building permit.” Sometimes it’s the Legislature’s job to clean up and clarify after a court decision. This is one of the times, and the sooner the better.
-Rob McKenna

Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.